Medicine as a Public Calling

Nicholas Bagley*

The debate over how to tame private medical spending tends to pit advocates of government-provided insurance—a single-payer scheme—against those who would prefer to harness market forces to hold down costs. When it is mentioned at all, the possibility of regulating the medical industry as a public utility is brusquely dismissed as anathema to the American regulatory tradition. This dismissiveness, however, rests on a failure to appreciate just how deeply the public utility model shaped health law in the twentieth century—and how it continues to shape health law today. Closer economic regulation of the medical industry may or may not be prudent, but it is by no means incompatible with our governing institutions and political culture. Indeed, the durability of such regulation suggests that the modern embrace of market-based approaches in the medical industry may be more ephemeral than it seems.

* Assistant Professor of Law, University of Michigan Law School. For their invaluable comments, I would like to thank Sam Bagenstos, Kristina Daugirdas, Richard Friedman, Charlie Gerstein, Mark Hall, Scott Hershovitz, Don Herzog, Jill Horwitz, David Hyman, Peter Jacobson, Matthew Lawrence, Hannah Logue, Kyle Logue, Nina Mendelson, Julian Mortenson, William Novak, Sallyanne Payton, Richard Primus, Adam Pritchard, Carl Schneider, Kevin Stack, and Melissa Wasserman. The Article benefited greatly from presentations at the University of Illinois College of Law and at the annual conference of the American Society of Law, Medicine & Ethics.

Download as PDF